The opinion of the court was delivered by: Hon. Andrew J. Wistrich, U.S. Magistrate Judge
Ysela Benavides Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS UNTIMELY
Petitioner filed this petition for writ of habeas corpus on March 8,*fn1
From the face of the petition, it appears that it is barred by the one-year period of limitation set forth in the AEDPA. 28 U.S.C. § 2244(d)(1). According to the petition, petitioner was convicted in 1998, and the California Supreme Court denied his petition for review on September 29, 1999. [Petition at 2-3]. Thus, it appears that petitioner's conviction became final on December 28, 1999. Consequently, petitioner had one year -- or until December 28, 2000 -- to file a federal petition.
Patterson v. Stewart, 251 F.3d 1243, 1245-1246 (9th Cir.), cert., 534 U.S. 978 (2001).
This petition was not filed until April 9, 2012, more than twelve years after the limitation period expired. Thus, absent grounds for statutory, 28 U.S.C. § 2244(d)(1) and (2), or equitable tolling, of the limitation period, the petition is time-barred.
Petitioner had state habeas petitions pending from November 6, 2000 until March 28, 2001. [Petition at 3-4].*fn2 At the time he filed his first state petition, fifty-two days of the limitation period remained. Thus, tolling the period until March 28, 2001,*fn3 petitioner had fifty-two days -- or until May 20, 2001 -- to file his federal petition.*fn4
This petition, however, was not filed until more than a decade after the limitation period expired. Furthermore, petitioner has not provided an adequate explanation for the lengthy delay in filing his federal habeas petition which might entitle him to equitable tolling of the one year statute of limitation. The Supreme Court has explained that "a litigant seeking equitable tolling bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 & n.8 (2005). "In this circuit, equitable tolling of the filing deadline for a habeas petition is available 'only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002) (citation and quotation omitted). Equitable tolling may be appropriate when "external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely claim." Lott, 304 F.3d at 925(citation omitted).
Petitioner may be entitled to a later starting date based upon his allegation of new evidence. [Petition at 5]. Under section 2244(d)(1)(D), a petition is timely if it is filed no later than a year from the date on which the factual predicate of the claims "could have been discovered through the exercise of due diligence." As the Ninth Circuit has explained, under section 2244(d)(1)(D), the limitation period does not begin until the petitioner knows, or through diligence could discover, the important facts underlying his claim, not when petitioner recognizes the facts' legal significance. Hasan v. Galaza, 254 F.3d 1150, 1154 & n. 3 (9th Cir. 2001) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) ("Time begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance.")). Petitioner, however, has not explained when he discovered the factual predicate for his claims, nor has he provided the Court with any explanation of what action he took in an effort to discover and present his claims and why he could not have discovered the factual predicate for his claims earlier.
Petitioner must show cause why the petition should not be dismissed as untimely by filing a response to this order within twenty-eight (28) days of the date of this order. In the response to this order, petitioner must describe in detail the steps he took in an effort to uncover the factual basis for his claims. He also must, if possible, attach copies of any state petition and the state court's decision addressing each petition. Further, petitioner must describe specifically the nature and duration of any extraordinary circumstances which petitioner believes impeded his ability to timely file his petition. All facts relied upon by ...